Global Policy Forum

By Mahmood Zaman

People's Party leader Syed Iqbal Haider has given a food for thought to participants in a workshop on the International Criminal Court (ICC) that a religious or ethnic minority of Pakistan might invoke the court's jurisdiction on the ground of persecution and extermination. Crimes against humanity is one of the scheduled offences of the ICC and discussing the specific acts of these crimes, the former senator pleaded that a mechanism to examine the contention and bonafide of complainants had to be evolved before the ICC.

Some other participants also expressed similar concerns and feared that the ICC might, in years to come, be used as a tool to issue legal injunctions against nations which had systems or interests in conflict with certain forces dominating the world. For example, it was said that the United Nations Security Council had of late acted in the interest of the only super power of the world by slapping sanctions on Libya, Iraq and Afghanistan. Since the UN Security Council was one of the three agents in referring cases to the proposed ICC, it might have a view of cases other than member states.

Such fears were expressed by the participants in the workshop and it was agreed that such questions should be raised with other regional countries and a common stance on a host of other issues, which needed clarifications, should be evolved. The two-day workshop, which concluded here on Sunday, was sponsored jointly by the AGHS Legal Aid Cell and Sri Lanka's NGO Women and Media Collective. The workshop resolved to formulate a national and regional opinion on the ICC whose many laws contained ambiguity. However, the participants were unanimous in the view that the international court was a giant leap forward in taking a serious legal notice of human rights violations the world over. The step proposed to ending immunity of the powerful regardless of their official position, was hailed in particular.

Genocide, crimes against humanity and serious war crimes are the broader triable offences which have been scheduled in the ICC jurisdiction. Crimes against humanity have been defined as "an act committed as part of a widespread or systematic attack against any civil population, with the knowledge of attack". Murder, extermination, enslavement and deportation have been specified in this category in the light of the Nuremberg charter. Imprisonment, torture, rape and persecution on political, ethnic, racial and religious grounds came to the fore during the UN-sponsored criminal probe into former Yugoslavia. However, the category was further updated by including forcible transfer of population, deprivations of physical liberty, sexual slavery, enforced prostitution and sterilization, forced pregnancy or any other form of grave sexual violence, forced disappearance of a person and apartheid have also been included in the category of crimes against humanity.

The workshop also agreed that the ICC jurisdiction was universal and extended even on states not ratifying the Rome Statute, which caused the ICC's creation. This was because the ICC could refer to the UN Security Council the case of a state which failed to cooperate with the court in any manner.

Another "grey area" pointed out was regarding the jurisdiction of the prosecutor in taking up proprio motu investigation. Certain provision that all states must ensure a national judicial system nearly compatible with the ICC's draft law was taken by some participants as setting a stage where world legal systems come to terms with international standards, particularly in regard to respecting human rights.

Many fears of the participants were allayed by a former chief justice of the Sindh High Court, Mr Nasir Aslam Zahid, who explained in detail the ICC's draft law. According to him, the draft had 225 provisions. The court, to comprise 18 judges who will be elected for one nine-year non-renewable term by member states, had three tiers of working. The first was a pre-trial chamber where some of the judges would determine maintainability of a petition after the investigation of the prosecutor. The second tier was a trial court and the third has been provided to hear appeals and review petitions. The court had been designated to work in line with the UN standards of the right to a fair trial. Mr Nasir Aslam Zahid was of the view that preliminary investigation might take two to three years before the hearing of a case would begin. He said that state parties would be under an obligation to implement conviction for which certain designated countries had been listed for serving a term. But the convict's right to serve the term in his or her own country had also been ensured in the draft law.

It may be pointed out that the ICC's draft law has proposed a variety of penalties for offenders in view of the gravity of offence. Article 77 has provided for an imprisonment for a "specified number of years" which, it says, will not be more than 30 years. A life term, which was said to be life imprisonment in jail till death, has also been provided. A fine, to be determined under the criteria in the rules of procedure and evidence, and confiscation of assets and other property derived from the crime, are the other penalties. However, the workshop was of the opinion that it would be through experience and practice that the ICC would be able to develop its jurisprudence and that would take several years.

Despite reservations, all the workshop participants hailed the ICC as a giant step forward towards the world movement for safeguarding human rights, respecting the rights of women and children and mitigating state terrorism. The strategy evolved for a national and then a regional approach was based on mobilizing opinion of almost all sections of society. It was resolved that a summary of proceedings and findings of the workshop would be sent to the government, political parties, legal community and NGOs for the purpose of soliciting a national view of the International Criminal Court. It would be on the basis of this consensus that a regional opinion would be sought.

The ICC was a new and difficult subject which had many ambiguities. But it was handled skilfully by all participants particularly AGHS director Hina Jilani who was the moving spirit behind the exercise.

SATURDAY'S PROCEEDINGS: Certain apprehensions about the role of the United Nations Security Council in evoking the jurisdiction of the International Criminal Court (ICC) is a major reason for Islamabad not hasting the ratification of the Rome Statute under which the court was created on July 18, 1998.

The creation of the ICC is aimed at adjudicating cases of genocide, crimes against humanity and serious war crimes in situations where a national judicial system is not available. These crimes exclusively include violence against women as crimes against humanity.

However, Islamabad's position is that the UN Security Council should have no role at all as an agent to refer cases to the ICC. Besides, there are certain lacunas in the statute on the role of the prosecutor and the question whether the ICC's jurisdiction will extend to states which do not ratify the Rome Statute, Foreign Office legal adviser Ross Masood told the workshop on the court. Mr Masood was attending the workshop on an invitation by the sponsors.

However, he said some relevant ministries were in the process of examining the statute. But no decision had yet been taken whether Islamabad would ratify the statute, according to the official.

The two-day workshop, which commenced here on Saturday, is being sponsored jointly by the AGHS Legal Aid Cell and Sri Lanka's NGO Women and Media Collective in an effort to formulate a regional approach to the ICC as another UN body.

The International Criminal Court was created by a statute adopted by the diplomatic conference at Rome on July 18, 1998, after 139 states had consented for the statute. Pakistan was not included among the signatory states, yet it supported the establishment of the ICC.

In addition to bringing out a draft text of the law to govern the court, the Rome conference decided that the ICC would start functioning once the statue was ratified by 60 states. As many as 30 states had so far ratified the Rome Statute and once again Pakistan had not done so. The ICC will have its headquarters at The Hague, the capital of the Netherlands, and will comprise 18 judges who will be elected by a two-thirds majority of member states on a non-renewable nine-year term.

The workshop was told that the Foreign Office understood that the UN Security Council's role had of late been controversial in taking cognizance of serious international offences. It failed to take notice of filing missiles on Afghanistan even before sanctions were clamped on Kabul. But sanctions were immediately slapped on Libya on the Lockerbie case.

Now that the UN Security Council had been listed as one of the machinery to evoke the ICC jurisdiction, Islamabad had certain strong reservations about its judicious application. Besides, another reservation was that the Rome statute was not clear whether the ICC would have powers of reopening a case once it was decided by courts in a member state. Certain other questions like investigation mechanism was also said to be a cause of Islamabad's reservation about the Rome Statute.